"Closing the Net"

by
Greg Costikyan

[Reproduced with permission from the January 1991 issue of _Reason_
magazine. A one-year subscription (11 issues) is $19.95. Copyright
1991 by the Reason Foundation, 2716 Ocean Park Blvd., Suite 1062,
Santa Monica, CA 90405. Please do not remove this header.]

Back in early February, newspapers across the country reported that
computer hackers were interfering with emergency calls over the 911
communications network. The reports said the hackers had penetrated the
system using information from a secret computer document.
The scare grew out of an indictment by a grand jury in Lockport,
Illinois. On February 7, Craig Neidorf and Robert Riggs were indicted on
seven counts of wire fraud, violation of the Computer Fraud and Abuse Act
of 1986, and interstate transportation of stolen goods.
Prosecutors alleged that Neidorf and Riggs had conspired to steal,
using fraudulent methods, a confidential and proprietary document from the
Bell South telephone company. This document, it was claimed, could allow
computer hackers to disrupt the 911 emergency network.
The arrest of Neidorf and Riggs was only the beginning. The Secret
Service, which has authority over crimes involving government computers,
had embarked on a vast, nationwide investigation of hacker activity:
Operation Sun Devil.


Imagine the night face of North America, shining not with cities but
with lines of light showing the transmission of data. Brightest are New
York City, the financial capital, and California, the technological
capital, with Washington, D.C., a close third. The lines that crisscross
the country are telephone wires and cables, microwave transmissions, and
packet-switching networks designed for computer communication. Here and
there, beams dart into space to reflect off satellites and back to earth.
The computer networks in this country are huge. The largest are
entities like UseNet and InterNet, which link every academic computing
center of any size and are accessible to every scientist, university
student, and faculty member in the nation. The networks also include
government-operated systems, such as MilNet, which links military computers
that do not carry confidential information. And there are the commercial
services, such as Dow Jones News/Retrieval, SportsNet, CompuServe, GEnie,
and Prodigy. CompuServe is the largest of these, with half a million
subscribers.
In addition to these massive entities are thousands of tiny bulletin
board services, or BBSes. Anyone with a computer and a modem can start a
BBS; others can then call it up and use it. BBSes offer, in miniature,
essentially the same services that the commercial nets offer: the ability
to chat with others by posting messages to an electronic bulletin board and
the ability to upload and download software and text files. There are more
than 5,000 BBSes in the United States, most of them operated for fun. Few
charge their users. In my local calling area alone, I know of BBSes for
writers, gamers, Macintosh enthusiasts, gays, and the disabled -- and I'm
sure there are others.
The vast majority of BBSes deal with unexceptional topics. But some
boards deal with questions of computer security. These attract hackers.
Naturally, hackers discuss their hobby: breaking into computers.
Usually, however, bulletin board discussions are general in nature.
Hackers are not stupid, and they know that posting credit card numbers or
the like is evidence of criminal activity. By and large, BBS discussions
rarely, if ever, contain information that would be illegal if published in
print form. It's not illegal, after all, to tell your readers how to
commit illegal acts. If it were, books like _The_Anarchist's_Cookbook_ and
_Scarne_on_Cards_ (and half the murder mysteries in print) would be banned.
The laws dealing with electronic transmissions, however, are far
from clear. And the methods used to enforce these vague laws set a
dangerous precedent for abridging freedom of speech.
In the future, the Net -- the combination of all the computer
networks -- will be the primary means of information transmission, with
print publication merely its adjunct. The Net will replace the press, and
users of the Net must enjoy precisely the freedoms enjoyed by the press.
If users of the Net have to worry about police surveillance, if censorship
is rife, if the state forbids mere discussion of certain topics -- then the
liberty for which the Founders fought will have been destroyed, not by war
or tyranny, but by mere technological change.


From the government's point of view, the arrest of Neidorf and Riggs
did not end the threat to the 911 network. The document they had stolen
was not a single piece of paper that could be returned to its rightful
owner. It was an electronic document that Riggs had downloaded from a Bell
South computer.
Riggs belonged to a hacker group called the Legion of Doom, whose
members shared information. It was likely that others in the group had
copies of the 911 document. Worse, Riggs had uploaded the 911 document to
a bulletin board service in Lockport, Illinois. Neidorf had downloaded the
file from the Lockport BBS. Anyone else who used the same BBS could have
downloaded it, too, meaning that dozens of people might have this dangerous
information. Worse yet, Neidorf had published an edited version of the
Bell South document in an issue of his underground computer magazine,
_Phrack_.
Unlike conventional magazines, _Phrack_ never saw a printing press;
it was distributed electronically. After preparing an issue, Neidorf would
dispatch it, via various computer networks, to his address list of 1,300
names. Any recipient could then upload the magazine to a bulletin board or
to one of the academic or commercial nets. That meant thousands, perhaps
millions, of people had access to the information in the Bell South
document.
We may imagine that the Secret Service was gravely concerned about
the potential threat to emergency services. If not, then their subsequent
actions are hard to fathom.


On March 1, 1990, employees of Steve Jackson Games, a small game
company in Austin, Texas, arrived at their place of business to find that
they were barred from the premises. The Secret Service had a warrant, and
the agents conducting the search wouldn't let anyone in until they were
done.
The agents ransacked the company's offices, broke a few locks, and
damaged some filing cabinets. They searched the warehouse so thoroughly,
says company founder Steve Jackson, that afterward it "looked like a
snowstorm," with papers strewn randomly. The agents confiscated three
computers, a laser printer, several pieces of electronic equipment
(including some broken equipment from a storeroom), several hard drives,
and many floppy disks. They told Jackson they were seizing the equipment
"as evidence" in connection with a national investigation.
Among the equipment seized was the computer through which S.J. Games
ran a BBS to communicate with customers and freelancers. It had never been
a congregating point for hackers and was about as much a threat to the
public order as a Nintendo game.
The loss of the equipment was bad enough. Worse, the Secret Service
seized all existing copies -- on hard drives, floppy disks, and paper -- of
S.J. Games' next product, a game supplement called GURPS Cyberpunk. The
loss of that data shot Jackson's publication schedule to hell. Like many
small publishers, S.J. Games runs on tight cash flow. No new products, no
income. No income, no way to pay the bills.
Over the next several weeks, Jackson was forced to lay off about
half of his 17 employees. By dint of hard work, he and his staff managed
to reproduce the data they'd lost, mostly from memory. S.J. Games finally
published GURPS Cyberpunk as "The Book Seized by the Secret Service." It
has sold well by the (low) standards of the field.
Jackson estimates the raid has cost him more than $125,000, a sum a
small company like his can ill afford. (The company's annual revenue is
less than $2 million.) He was nearly put out of business by the Secret
Service.
What justified the raid and the seizures? Apparently, this: The
managing editor of Steve Jackson Games is Loyd Blankenship. Blankenship
ran The Phoenix Project, a BBS of his own in the Austin area. Blankenship
consorted with hackers. He was fascinated by the computer underground and
planned to write a book about it. He may or may not have once been a
hacker himself. He certainly knew and corresponded electronically with
admitted members of the Legion of Doom.
But perhaps Blankenship's worst luck was this: An issue of
Neidorf's _Phrack_ magazine included an article titled "The Phoenix
Project." As it happens, that article had nothing to do with Blankenship's
BBS of the same name. But the Secret Service was well aware of the
contents of _Phrack_. Indeed, the revised indictment of Neidorf and Riggs,
issued in July, cited the article by title. The same morning that the
Secret Service raided Steve Jackson Games, agents awakened Blankenship and
held him at gunpoint as they searched his house. They seized his computer
and laser printer as "evidence."
Consider the chain of logic here. Robert Riggs is accused of a
crime. Riggs belongs to a group. Loyd Blankenship is friends with other
members of the group, though not with Riggs himself. Steve Jackson Games
employs Blankenship. Therefore, the Secret Service does grievous financial
injury to Steve Jackson Games. This is guilt by association taken to an
extreme.
Neither Blankenship, nor Steve Jackson Games, nor any company
employee, has ever been charged with so much as spitting in a public place.
The Secret Service refuses to comment, saying only that S.J. Games was not
a target of the investigation.
The company is now receiving legal help from the Electronic Frontier
Foundation, an organization devoted to promoting civil liberties in
electronic media. The Secret Service has returned most -- but not all --
of the company's seized equipment. Some of it is broken and irreparable.
The government has made no offer of restitution or replacement.


On May 8, 1990, the Secret Service executed 28 or more search
warrants in at least 14 cities across the country. The raids involved more
than 150 agents, plus state and local law enforcement personnel.
According to a press release from the U.S. Attorney's office in
Phoenix, the operation targeted "computer hackers who were alleged to have
trafficked in and abused stolen credit card numbers [and] unauthorized
long-distance dialing codes, and who conduct unauthorized access and damage
to computers." The agency claimed the losses might amount to millions of
dollars. In later releases and news reports, that figure was inflated to
tens of millions of dollars.
Nationwide, the government seized at least 40 computers and 23,000
disks of computer information. In most cases, the subjects of these
searches have remained anonymous. Presumably, they have either been
advised by counsel to remain silent or have been so intimidated that they
wish to attract no further attention.
John Perry Barlow reports in _Whole_Earth_Review_ that the Secret
Service held families at gunpoint while agents charged into the bedrooms of
teenage hacker suspects. He adds that some equipment seizures deprived
self-employed mothers of their means of support. These reports remain
unconfirmed. It's clear, however, that the Secret Service closed down a
number of BBSes by the simple expedient of seizing "as evidence" the
computers on which those BBSes operated.
Bulletin board services are venues for speech. They are used mainly
to exchange information and ideas. Nothing in the nature of the technology
prevents the exchange of illegal ideas. But in a free society, the
presumption must be that, in absence of proof to the contrary, the use of a
medium is legitimate. The Secret Service has not indicted, let alone
convicted, the operators of any of the BBSes closed down on May 8.
If law enforcement officials suspect that a magazine, newspaper, or
book publisher may be transmitting illegal information, they get a warrant
to search its files and perhaps a restraining order to prevent publication.
They don't, however, seize its printing presses to prevent it from
operating. A clearer violation of freedom of the press could hardly be
imagined. Yet that is precisely what the Secret Service has done to these
BBSes.
One of the BBSes closed down was the JolNet BBS in Lockport,
Illinois, which Neidorf and Riggs had used to exchange the 911 document.
Ironically, JolNet's owner, Richard Andrews, had triggered the
investigation by noticing the document, deciding it was suspicious, and
notifying the authorities. He had cooperated fully with the investigators,
and they rewarded him by seizing his equipment.


The Ripco BBS in Chicago was among those raided by the Secret
Service. Operated by Bruce Esquibel under the handle of "Dr. Ripco," it
was a freewheeling, wide-ranging board, one of the best known BBSes in the
Chicago area. Speech was extraordinarily free on the Ripco board.
"I felt that any specific information that could lead to direct
fraud was not welcome and would be removed, and persons who repeated
violating this themselves would be removed from the system also," Esquibel
writes. But just about anything else was open for discussion. Hackers did
indeed discuss ways of breaking into computers. And the Ripco board
contained extensive text files, available for downloading, on a variety of
subjects to which some might take exception. For instance, there was a
series of articles on bomb construction -- material publicly available from
books such as _The_Anarchist's_Cookbook_.
Along with the computer on which Ripco operated, the Secret Service
seized two other computers, a laser printer, and a 940-megabyte WORM drive,
an expensive piece of equipment. The additional seizures mystify Esquibel.
"My guess is that after examining the rat's nest of wires around the three
computers, they figured anything plugged into the power strip must have
been tied in with [the rest] in some way," he says.
The Secret Service has yet to return any of Esquibel's equipment.
He has yet to be charged with any crime, other than failure to register a
firearm. (He had three unlicensed guns at his office; he informed the
Secret Service agents of this before they began their search.) Says
Esquibel, "The government came in, took my personal property to determine
if there was any wrongdoing somewhere. It seems like a case of being
guilty until proven innocent...It's just not right...I am not a hacker; [I
don't] have anything to do with credit cards or manufactured explosives.
Until the weapons charge I never had been arrested, and even my driving
record has been clean since 1978."
It appears that the Secret Service has already achieved its goal.
The Ripco board was a place where "dangerous" speech took place, and the
agency closed it down. Why bother charging Esquibel with a crime?
Especially since he might be acquitted.


Secret Service agents searched the home of Len Rose, a computer
consultant from Baltimore, on May 8. The agents not only seized his
computers but confiscated every piece of electronic equipment in the house,
including his fax machine, along with some family pictures, several boxes
of technical books, and a box containing his U.S. Army medals.
On May 15, Rose was indicted on four counts of wire fraud, aiding
and abetting wire fraud, and interstate transportation of stolen goods.
Among other things, the indictment alleged that Rose is a member of the
Legion of Doom, a claim both he and admitted Doomsters vociferously deny.
The interstate-transportation charge is based on the fact that Rose
was in possession of source code for Unix, an operating system used by a
wide variety of minicomputers and computer workstations. (Source code is
the original text of a program.) In theory, Unix is the property of AT&T,
which developed the system. AT&T maintains that Unix is protected as a
confidential, unpublished work. In fact, AT&T has sold thousands of copies
across the country, and every systems programmer who works with Unix is
likely to have some of the source code lying around.
The wire-fraud counts are based on the fact that Rose sent a copy of
a "Trojan horse" program by electronic mail. Trojan horse programs are
sometimes used by hackers to break into computers; they are also sometimes
used by systems managers to monitor hackers who try to break in. In other
words, a Trojan horse program is like a crowbar: You can use it to break
into someone's house, or you can use it to help renovate your own house.
It has both legitimate and illegitimate uses.
Rose is a computer consultant and has dealt with security issues
from time to time. He maintains that his Trojan horse program was used
solely for legitimate purposes -- and, in any case, would no longer work,
because of changes AT&T has made to Unix since Rose wrote the program.
Rose is not charged with actually attempting to break into computers,
merely with possessing a tool that someone could use to break in. In
essence, the Secret Service found Len Rose in possession of a crowbar and
is accusing him of burglary.
By seizing Rose's equipment, the Secret Service has effectively
denied him his livelihood. Without his equipment, he cannot work. Rose
says he has lost his home, his credit rating and credit cards, his
business, and some of his friends. He can no longer afford to retain his
original attorney and is now represented by a public defender.
Rose's difficulties are compounded by a theft conviction arising
from a dispute with a former client regarding the ownership of computer
equipment. Nevertheless, it seems brutal for the Secret Service to deny
him the means to support his family and to pay for an effective defense.
Investigators must long ago have gleaned whatever evidence his equipment
may have contained.


Ultimately, the case against Neidorf and Riggs fell apart. In June,
the grand jury issued a revised indictment. It dropped the charges of
violating the Computer Fraud and Abuse Act and added seven new counts of
wire fraud, some involving electronic mail between Neidorf and Riggs.
Neidorf was charges with two counts of wire fraud for uploading issues of
_Phrack_ to JolNet. In other words, mere distribution of his publication
was deemed to be "fraud" because _Phrack_ contained material the Secret
Service claimed had been obtained by fraudulent means. The new indictment
also reduced the "value" of the document Riggs allegedly stole from more
than $70,000 to $20,000.
On July 9, Riggs pleaded guilty in a separate indictment to one
count of conspiracy in breaking into Bell South's computer. Sentencing was
set for September 14 -- after Neidorf's trial was to begin. Riggs agreed
to be a witness for the prosecution of Neidorf.
On July 28, Neidorf's trial began in Chicago. Within four days, it
was over. The prosecution's case had collapsed.
Under cross-examination, a Bell South employee admitted that the
stolen document was far from confidential. Indeed, any member of the
public could purchase a copy by calling an 800 number, requesting the
document, and paying $13 -- far less than the $20,000 claimed value or the
$5,000 minimum required to support a charge of transporting stolen goods
across state lines.
Testimony also revealed that the contents of the document could not
possibly allow someone to enter and disrupt the 911 network. The document
merely defined a set of terms used in telecommunications and described the
procedures used by Bell personnel in setting up a 911 system.
Riggs, testifying for the prosecution, admitted that he had no
direct knowledge that Neidorf ever gained illegal access to anything; that
Neidorf was not himself a member of the Legion of Doom; and that Neidorf
had not been involved in the initial downloading of the document in any
way.
In short, Neidorf and Riggs had not conspired; therefore, Neidorf
should not have been charged with the fraud counts. The only value of
which Bell South was "deprived" by Riggs's downloading was $13; therefore,
he was, at worst, guilty of petty theft. The interstate-transportation
counts were moot, since the "stolen goods" in question were worth less than
the $5,000 minimum.
Not only was there no case against Neidorf -- there also was no case
against Riggs. The government dropped the case against Neidorf. Riggs,
however, had already pleaded guilty.


The computer nets do need policing. Computer crooks can steal and
have stolen millions of dollars. But a balance must be struck between
civil liberties and the legitimate needs of law enforcement. The laws as
currently constituted are inadequate from both perspectives, and the Secret
Service seems determined to interpret them with a callous disregard for
civil liberties.
To attack computer crime, prosecutors primarily use the statutes
dealing with wire fraud and interstate transportation of stolen goods, the
Computer Fraud and Abuse Act of 1986, and the Electronic Communication
Privacy Act of 1986. The wire fraud statute prohibits the use of the
telephone, wire services, radio, and television in the commission of fraud.
The courts have, logically, interpreted it to apply to electronic
communications as well.
The interstate transportation statute prohibits transportation of
stolen goods valued at $5,000 or more across state lines. Neidorf's lawyer
moved to dismiss those counts, claiming that nothing tangible is
transported when a document is uploaded or downloaded. The judge ruled
that tangibility was not a requirement and that electronic transmission
could constitute transportation. The Computer Fraud and Abuse Act
prohibits knowingly, and with intent to defraud, trafficking in information
that can be used to gain unauthorized access to a computer.
The Electronic Communications Privacy Act makes it a crime to
examine private communications transmitted electronically. Among other
things, it requires law enforcement agencies to obtain search warrants
before opening electronic mail. It is unclear whether electronic mail
files on a BBS's hard drive are covered by a warrant that permits seizure
of the hard drive, or whether separate warrants are needed for each
recipient's mail.
The reliance on fraud statutes to fight computer crime presents
problems. Fraud is the use of chicanery, tricks, or other forms of
deception in a scheme to deprive the victim of property. Most attempts by
hackers to gain illegal access to a computer do involve chicanery or
tricks, in some sense -- the use of other people's passwords, the use of
known bugs in systems software, and so on. Much of the time, however, a
hacker does not deprive anyone of property.
If the hacker merely signs on and looks around, he deprives the
computer operators of a few dollars of computer time at worst. If he
downloads a file, the owner still has access to the original file. If the
file's confidentiality has value in itself -- as with a trade secret --
downloading it does deprive the owner of something of value, but this is
rarely the case.
We need a "computer trespass" statute, with a sliding scale of
punishments corresponding to the severity of the violation. Just as
burglary is punished more severely than trespass, so a hacker who steals
and uses credit card numbers ought to be punished more severely than one
who does nothing more than break into a computer and examine a few public
files. In the absence of such a scheme, law enforcement personnel
naturally try to cram all computer violations into the category of fraud,
since the fraud statutes are the only laws that currently permit
prosecution of computer crimes. As a result, petty crimes are charged as
felonies -- as with Neidorf and Riggs.


Legitimate users and operators of computer networks need to be
protected from arbitrary seizures and guilt by electronic association. The
criminal code permits law enforcement personnel to seize equipment used in
a crime or that might provide criminal evidence, even when the owner has no
knowledge of the crime. But the purpose of such seizures is to allow the
authorities access to evidence of criminal activity, not to shut down
businesses. Searchers need not remove computer equipment to inspect the
files it contains. They can sit down and make copies of whatever files
they want on the spot. Even if they expect some piece of incriminating
material to be hidden particularly well -- for example, in a specially
protected file or in a ROM chip -- it is unreasonable to hold onto the
seized equipment indefinitely.
And it's clearly wrong to seize equipment that cannot, by any
stretch of the imagination, contain incriminating data. In both the Steve
Jackson and Ripco cases, the Secret Service seized laser printers along
with other equipment. Laser printers have no permanent memory (other than
the factory-supplied ROM chips that tell them how to operate). They print
words on paper, that's all. They cannot contain incriminating information.
Even computers themselves cannot possibly constitute evidence. When
you turn off a computer, its memory dies. Permanent data exist only on
storage media -- hard drives, floppy disks, tape drives, and the like.
Even if law enforcement personnel have some compelling reason to take
storage media away to complete a search, they have no reason to take the
computers that use those media.
Just as a computer is not evidence because it once carried
incriminating information, a network is not a criminal enterprise because
it once carried data used in or derived from fraudulent activity. Yet
under current law, it seems that the operator of a bulletin board is liable
if someone posts an illegal message on it. Say I run a BBS called Mojo.
You dial Mojo up and leave Mario Cuomo's MasterCard number on the board,
inviting anyone to use it. Six people sign on, read the message, and fly
to Rio courtesy of the governor before I notice the message and purge it.
Apparently, I'm liable -- even though I had nothing to do with obtaining
Cuomo's credit card number, never used it, and strenuously object to this
misuse of my board.
Such an interpretation threatens the very existence of the academic
and commercial nets. A user of UseNet, for instance, can send a message to
any other user of UseNet. The network routes messages in a complex fashion
-- from Computer A to Computer B to Computer C, and so on, depending on
what computers are currently live, the volume of data transmitted among
them, and the topography of the net itself. The message could pass through
dozens of computers before reaching its destination. If someone uses the
message to commit fraud, the system operators of every computer along its
path may be criminally liable, even though they would have no way of
knowing the contents of the message.
Computer networks and BBSes need the same kind of "common carrier"
protection that applies to the mails, telephone companies, and wire
services. Posting an illegal message ought to be illegal for the person
who posts it -- but not for the operator of the board on which the message
appears.
The main function of the Net is to promote communication. People
use it to buy goods, research topics, download software, and a myriad of
other things as well, but most of their computing time is spent
communicating: by posting messages to bulletin boards, by "chatting" in
real time, by sending electronic mail, by uploading and downloading files.
It makes no sense to say that discussion of a topic in print is OK, but
discussion of the same topic via an electronic network is a crime.
Yet as currently interpreted, the law says that mere transmission of
information that someone _could_ use to gain access to computers for
fraudulent purposes is itself fraud -- even if no fraudulent access takes
place. The Secret Service, for instance, was willing to indict Neidorf for
publishing information it thought could be used to disrupt the 911 network
-- even though neither Neidorf nor anyone else actually disrupted it. We
must clearly establish that electronic communications are speech, and enjoy
the same protections as other forms of speech.
The prospects for such legal reform are not bright. Three times in
this century, technological developments have created new venues for
speech: with radio, with television, and with cable. On the grounds of
scarcity, government restricts freedom of speech on radio and television;
on the grounds of natural monopoly, government regulates speech on cable.
Recent events, such as the conviction of former Cornell graduate student
Robert T. Morris for introducing a virus into the nationwide ARPANet, have
aroused worry about hacker crimes. But concern for the rights of
legitimate users of computer nets has not received that same level of
publicity. If anything, recent trends lean toward the adoption of more
draconian laws -- like the Computer Fraud and Abuse Act, which may make it
illegal even for computer security professionals to transmit information
about breaches of security.


The Net is vast -- and growing fast. It has already changed the
lives of thousands, from scientists who learn of new breakthroughs far more
quickly than if they had to wait for journal publication, to stay-at-home
writers who find in computer networks the personal contact they miss
without office jobs. But the technology is still in its infancy. The Net
has the capacity to improve all our lives.
A user of the Net can already find a wide variety of information,
from encyclopedia entries to restaurant reviews. Someday the Net will be
the first place citizens turn to when they need information. The morning
paper will be a printout, tailored to our interests and specifications, of
articles posted worldwide; job hunters will look first to the Net; millions
will use it to telecommute to work; and serious discussion will be given to
the abolition of representative government and the adoption of direct
democracy via network voting.
Today, we are farmers standing by our country lanes and marveling as
the first primitive automobiles backfire down the road. The shape of the
future is murky. We cannot know what the Net will bring, just as a farmer
seeing a car for the first time couldn't possibly have predicted six-lane
highways, urban sprawl, the sexual revolution, and photochemical smog.
Nonetheless, we can see that something remarkable is happening, something
that will change the world, something that has the potential to transform
our lives. To ensure that our lives are enriched and not diminished, we
must ensure that the Net is free.


-- Greg Costikyan is a writer of fiction and nonfiction who has designed 23
commercially published games.